Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst
[2021] FedCFamC2G 19
•7 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst [2021] FedCFamC2G 19
File number(s): SYG 1242 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 7 September 2021 Catchwords: COSTS – whether fixed costs order should be made – costs referred for taxation under Part 40 of the Federal Court Rules 2011 (Cth). Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 22.02(1)(a), 22.02(2)(c)
Federal Court Rules 2011 (Cth) Pt 40
Conveyancing Act 1919 (NSW) s 66G(1)
Legal Profession Uniform Law Application Act 2014 (NSW) s 68
Cases cited: Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst [2021] FCCA 1749 Division: Division 2 General Federal Law Number of paragraphs: 5 Date of last submission/s: 12 August 2021 Date of hearing: Decided on the papers Place: Sydney Solicitor for the Applicant: Mr A Edmonds of CLH Lawyers The Respondent: No appearance by, or on behalf of, the respondent ORDERS
SYG 1242 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANDREW JOHN SCOTT, THE TRUSTEE OF THE PROPERTY OF MICHAEL JOHN HURST, A BANKRUPT
Applicant
AND: RHONDA CAROLINE HURST
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
7 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to r 22.02(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the applicant’s costs referred to in order 6(f) of the orders made on 30 July 2021 be referred for taxation under Part 40 of the Federal Court Rules 2011 (Cth).
THE COURT NOTES THAT:
2.This is an order of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
On 30 July 2021 I made orders under s 66G(1) of the Conveyancing Act 1919 (NSW) appointing Andrew John Scott and Daniel Austin Walley as trustees for the sale of a particular parcel of land (Property).[1] I also made the following orders:
[1] Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst [2021] FCCA 1749
6.The proceeds of the sale of the Property be paid in the following priority:
. . . .
f.the applicant’s legal costs of these proceedings as determined pursuant to orders 8 and 9;
. . . .
8.The applicant may apply pursuant to r 21.02(1) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) for an order pursuant to r 21.02(2)(a) of the FCC Rules that the Court set the amount of the applicant’s costs of this proceeding, such application to be made by the applicant filing and serving, by no later than 13 August 2021, an affidavit on which the applicant relies for such order.
9.If by 27 August 2021 the respondent does not file any affidavit in relation to costs in response to any affidavit the applicant may file pursuant to order 8, Judge Manousaridis will be at liberty to set the applicant’s costs pursuant to r 21.02(2)(a) of the FCC Rules, or in the alternative make an order under r 21.02(2)(c) of the FCC Rules referring the costs for taxation under Part 40 of the Federal Court Rules 2011 (Cth).
Pursuant to these orders, on 12 August 2021 the applicant filed an affidavit made by Mr Edmonds in which he set out evidence of the fees the applicant has incurred. Mr Edmonds, who is a solicitor of some 7 years’ experience, deposes that the applicant’s actual costs are $31,103.50, $29,194.00 of which represents solicitors’ professional fees, and $1,909.50 represents disbursements. Mr Edmonds deposes that “on assessment” the applicant “may be entitled to recover $23,454.10”.
Mr Edmonds does not identify the assessment to which he refers, although I assume that the assessment he intends to refer to is one that would be made pursuant to an application under s 68 the Legal Profession Uniform Law Application Act 2014 (NSW). I have no reason to doubt Mr Edmonds’ implicit estimate that, under that Act, legal costs are generally assessed at around 75% of the costs that are actually charged to a client. I am not satisfied, however, that that would reflect an assessment carried out under Part 40 of the Federal Court Rules 2011 (Cth) (FC Rules). I am also not satisfied that the time Mr Edmonds deposes was taken in preparing the application and affidavits filed in these proceedings is reasonable. That is not to say, however, that I find the time taken to be unreasonable.
Given my lack of satisfaction, and the size of the costs claimed, both in absolute terms, and as a proportion of the anticipated net proceeds of the sale of the Property, I do not propose to make an order setting costs under r 22.02(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GF Rules) (which on 1 September 2021 replaced the Federal Circuit Court Rules 2001 (Cth)). Instead, I propose to make an order under r 22.02(2)(c) of the GF Rules referring the applicant’s costs for taxation under Part 40 of the FC Rules.
I will note in the orders recording the order I propose to make that the order referring the applicant’s costs for taxation is made by the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the order I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”. Section 8 of the Act continues the existence of two federal courts and renames them. The first federal court the Act continues is the Court that, before 1 September 2021, was named the “Family Court of Australia”, and s 8(1) of the Act renames that Court the “Federal Circuit and Family Court of Australia (Division 1)”. The second federal court the Act continues is this Court which, before 1 September 2021, was named the “Federal Circuit Court of Australia”, but which s 8(2) of the Act renames the “Federal Circuit and Family Court of Australia (Division 2)”.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 7 September 2021
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